BILL NUMBER: SB 980 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 17, 2014
INTRODUCED BY Senator Lieu
FEBRUARY 11, 2014
An act to amend Section Sections
1405 and 1417.9 of , and to add Section 1405.1 to,
the Penal Code, relating to DNA testing.
LEGISLATIVE COUNSEL'S DIGEST
SB 980, as amended, Lieu. Prisoners: DNA testing.
Existing law allows a person who was convicted of a felony and is
currently serving a term of imprisonment to make a motion for the
performance of forensic deoxyribonucleic acid (DNA) testing. Existing
(1) Existing law allows an incarcerated person who has been
convicted of a felony to make a written motion for the performance of
forensic deoxyribonucleic acid (DNA) testing according to a
specified procedure.
This bill would, upon appointment or retention of counsel to
investigate and file a motion pursuant to these provisions, or at any
time after a petition for DNA testing has been filed, authorize a
court to order that counsel be provided access to physical evidence
for the purpose of examining physical evidence relating to the
investigation, arrest, and prosecution of the defendant upon a
showing that there is good cause to believe that access to physical
evidence is reasonably necessary to the counsel's effort to
investigate whether a motion for DNA testing is appropriate, as
specified. By increasing the duties of local governments in providing
access to physical evidence, this bill would impose a state-mandated
local program.
(2) Existing law requires a court
to grant the motion for DNA testing if it determines , among
other things, that the requested DNA testing results would
raise a reasonable probability that, in light of all the evidence,
the convicted person's verdict or sentence would have been more
favorable if the results of DNA testing had been available at the
time of conviction.
This bill would instead require the court to grant the motion if
it determines that the DNA testing results would be relevant to the
issue of the identity of the perpetrator, and would require the court
to presume the requested testing results would be exculpatory. The
bill also would make conforming changes regarding the required
contents of a petition requesting DNA testing. The bill would
authorize a court to order a database search of the Combined DNA
Index System to compare a profile obtained from the results of DNA
testing conducted pursuant to these provisions to the profiles
contained in the databank. The bill would change the accreditation
requirements for a laboratory that may be designated by the court to
perform the DNA testing pursuant to these provisions if the parties
cannot mutually agree on a laboratory, as specified.
(3) Existing law requires the appropriate governmental entity to
retain all biological material that is secured in connection with a
criminal case for the period of time that any person remains
incarcerated in connection with the case. Existing law allows the
governmental entity to dispose of biological material before the
expiration of this time period if the governmental entity notifies
the inmate and his or her counsel, and the notifying entity does not
receive, within 90 days of sending the notification, a motion for DNA
testing, a request that the material not be destroyed because a
motion for DNA testing will be filed within 180 days, or a
declaration of innocence that has been filed with the court within
180 days of the judgment of conviction.
This bill would require the governmental entity to retain all
biological material that is secured in connection with a criminal
case for the period of time that any person remains incarcerated, on
probation, or on parole in connection with the case. The bill would
allow the governmental entity to dispose of biological material
before the expiration of this time if the governmental entity
notifies the inmate and his or her counsel, and the notifying entity
does not receive, within one year of sending the notification, a
motion for DNA testing, a request that the material not be destroyed
because a motion for DNA testing will be filed within one year, or a
declaration of innocence that has been filed with the court within
one year of the judgment of conviction. By increasing the duties of
local governmental entities in regard to the retention of biological
material, this bill would impose a state-mandated local program.
If evidence has been destroyed in violation of these provisions,
and if the appropriate governmental entity receives a request for
evidence, the bill would require the agency to submit a statement
that a representative from the agency personally searched for the
requested evidence and determined that the evidence has been
destroyed. This bill would require the statement to be signed under
penalty of perjury. By expanding the crime of perjury, this bill
would impose a state-mandated local program. The bill would require
the court to consider appropriate remedies if it finds that
biological evidence has been destroyed.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
This bill would make a technical, nonsubstantive change to these
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1405 of the Penal Code is amended to read:
1405. (a) A person who was convicted of a felony and is currently
serving a term of imprisonment may make a written motion before the
trial court that entered the judgment of conviction in his or her
case, for performance of forensic deoxyribonucleic acid (DNA)
testing.
(b) (1) An indigent convicted person may request appointment of
counsel to prepare a motion under this section by sending a written
request to the court. The request shall include the person's
statement that he or she was not the perpetrator of the crime and
that DNA testing is relevant to his or her assertion of innocence.
The request also shall include the person's statement as to whether
he or she previously has had counsel appointed under this section.
(2) If any of the information required in paragraph (1) is missing
from the request, the court shall return the request to the
convicted person and advise him or her that the matter cannot be
considered without the missing information.
(3) (A) Upon a finding that the person is indigent, he or she has
included the information required in paragraph (1), and counsel has
not previously been appointed pursuant to this subdivision, the court
shall appoint counsel to investigate and, if appropriate, to file a
motion for DNA testing under this section and to represent the person
solely for the purpose of obtaining DNA testing under this section.
(B) Upon a finding that the person is indigent, and counsel
previously has been appointed pursuant to this subdivision, the court
may, in its discretion, appoint counsel to investigate and, if
appropriate, to file a motion for DNA testing under this section and
to represent the person solely for the purpose of obtaining DNA
testing under this section.
(4) This section does not provide for a right to the appointment
of counsel in a postconviction collateral proceeding, or to set a
precedent for any such right, in any context other than the
representation being provided an indigent convicted person for the
limited purpose of filing and litigating a motion for DNA testing
pursuant to this section.
(c) Upon appointment of counsel pursuant to subdivision (b), or
upon retention of counsel in all other cases, to investigate and, if
appropriate, to file a motion for DNA testing pursuant to this
section, and upon request of counsel, or at any time after a petition
has been filed pursuant to this section, a court may order that
counsel, or counsel's representatives, be provided access to physical
evidence for the purpose of examination, including, but not limited
to, any physical evidence relating to the investigation, arrest, and
prosecution of the defendant, upon a showing that there is good cause
to believe that access to physical evidence is reasonably necessary
to the counsel's effort to investigate whether a motion for DNA
testing is appropriate. Upon request of counsel, and upon a showing
that there is good cause to believe that it is reasonably necessary
to counsel's effort to investigate whether a motion for DNA testing
is appropriate, the court also may order all of the following:
(1) The appropriate governmental entity to locate and provide
counsel with any documents, notes, logs, or reports relating to items
of physical evidence collected in connection with the case or to
otherwise assist the defendant in locating items of biological
evidence that the governmental entity contends have been lost or
destroyed.
(2) The appropriate governmental entity to take reasonable
measures to locate biological evidence that may be in its custody.
(3) The appropriate governmental entity to assist counsel in
locating relevant evidence that may be in the custody of a public or
private hospital, public or private laboratory, or other facility.
(4) The production of laboratory documents of analyses performed
from the time of evidence intake to disposition, in the original form
provided by the laboratory, as prepared in connection with the
examination or analyses of any items collected as evidence that may
contain biological material. This includes, but is not limited to,
the underlying data and laboratory notes prepared in connection with
DNA tests, presumptive tests for the presence of biological material,
serological tests, and analyses of trace evidence, if the evidence
had been subjected to that testing. Any and all items from the
requested case file shall be made available, including digital files
and nonphotocopied photograph-quality prints of photographs taken.
(c)
(d) (1) The motion for DNA testing shall be
verified by the convicted person under penalty of perjury and shall
do all of the following:
(A) Explain why the identity of the perpetrator was, or should
have been, a significant issue in the case.
(B) Explain, in light of all the evidence, how the requested DNA
testing would raise a reasonable probability that the
convicted person's verdict or sentence would be more favorable if the
results of DNA testing had been available at the time of conviction
be relevant to the issue of the identity of the
perpetrator .
(C) Make every reasonable attempt to identify both the evidence
that should be tested and the specific type of DNA testing sought.
(D) Reveal the results of any DNA or other biological testing that
was conducted previously by either the prosecution or defense, if
known.
(E) State whether any motion for testing under this section
previously has been filed and the results of that motion, if known.
(2) Notice of the motion shall be served on the Attorney General,
the district attorney in the county of conviction, and, if known, the
governmental agency or laboratory holding the evidence sought to be
tested. Responses, if any, shall be filed within 60 days of the date
on which the Attorney General and the district attorney are served
with the motion, unless a continuance is granted for good cause.
(d)
(e) If the court finds evidence was subjected to DNA or
other forensic testing previously by either the prosecution or
defense, it shall order the party at whose request the testing was
conducted to provide all parties and the court with access to the
laboratory reports, underlying data, and laboratory notes prepared in
connection with the DNA or other biological evidence testing.
(e)
(f) The court, in its discretion, may order a hearing
on the motion. The motion shall be heard by the judge who conducted
the trial, or accepted the convicted person's plea of guilty or nolo
contendre, unless the presiding judge determines that judge is
unavailable. Upon request of either party, the court may order, in
the interest of justice, that the convicted person be present at the
hearing of the motion.
(f) The
(g) Before the grant of a motion for
DNA testing pursuant to this section, the defendant is not required
to show that a favorable test would conclusively establish his or her
innocence. Rather, the court shall grant the motion for DNA
testing if it determines all of the following have been established:
(1) The evidence to be tested is available and in a condition that
would permit the DNA testing requested in the motion.
(2) The evidence to be tested has been subject to a chain of
custody sufficient to establish it has not been substituted, tampered
with, replaced , or altered in any material
aspect. aspect, if the chain of custody does not
establish the integrity of the evidence, the testing itself has the
potential to establish the integrity of the evidence. For purposes of
this section, evidence that has been in the custody of law
enforcement, other government officials, or a public or private
hospital shall be presumed to satisfy the chain of custody
requirement of this paragraph, absent specific evidence of material
tampering, replacement, or alteration.
(3) The identity of the perpetrator of the crime was, or should
have been, a significant issue in the case.
(4) The convicted person has made a prima facie showing that the
evidence sought to be tested is material to the issue of the
convicted person's identity as the perpetrator of, or accomplice to,
the crime, special circumstance, or enhancement allegation that
resulted in the conviction or sentence.
(5) The requested DNA testing results would raise a reasonable
probability that, in light of all the evidence, the convicted person'
s verdict or sentence would have been more favorable if the results
of DNA testing had been available at the time of conviction. The
court in its discretion may consider any evidence whether or not it
was introduced at trial.
(5) The requested DNA testing results would be relevant to the
issue of the identity of the perpetrator. In making this
determination pursuant to this paragraph, the court shall presume the
requested testing results will be exculpatory, and shall determine
whether the requested DNA testing results would be relevant to the
issue of the identity of the perpetrator. Exculpatory results may be
results that exclude the convicted person, or results that both
exclude the convicted person and match another suspect or an offender
in the Combined DNA Index System (CODIS) as defined in Section
1405.1, or match an unrelated crime or crimes in CODIS. The court in
its discretion may consider any evidence whether or not it was
introduced at trial.
(6) The evidence sought to be tested meets either of the following
conditions:
(A) The evidence was not tested previously.
(B) The evidence was tested previously, but the requested DNA test
would provide results that are reasonably more discriminating and
probative of the identity of the perpetrator or accomplice or have a
reasonable probability of contradicting prior test results.
(7) The testing requested employs a method generally accepted
within the relevant scientific community.
(8) The motion is not made solely for the purpose of delay.
(g)
(h) (1) If the court grants the motion for DNA testing,
the court order shall identify the specific evidence to be tested
and the DNA technology to be used.
(2) The testing shall be conducted by a laboratory mutually agreed
upon by the district attorney in a noncapital case, or the Attorney
General in a capital case, and the person filing the motion. If the
parties cannot agree, the court shall designate the laboratory to
conduct the testing and shall consider designating a laboratory
accredited by the American Society of Crime Laboratory
Directors Laboratory Accreditation Board (ASCLD/LAB)
an accreditation body that is a signatory to the International
Laboratory Accreditation Cooperation (ILAC) Mutual Recognition
Agreement (MRA) and offers forensic laboratory
accreditation services .
(3) Analysts, technicians, or other agents of the laboratory
conducting the testing, including local or state governmental
laboratories, shall communicate directly with and provide
documentation directly to both parties simultaneously, and shall not
communicate with one party individually, unless the parties agree
otherwise.
(h)
(i) The result of any testing ordered under this
section shall be fully disclosed to the person filing the motion, the
district attorney, and the Attorney General. If requested by any
party, the court shall order production of the underlying laboratory
data and notes.
(i)
(j) (1) The cost of DNA testing ordered under
this section shall be borne by the state or the applicant, as the
court may order in the interests of justice, if it is shown that the
applicant is not indigent and possesses the ability to pay.
The costs of DNA testing, litigation costs incurred by
appointed counsel for the defendant, and fees to appointed counsel
for his or her representation of the defendant, ordered pursuant to
this section, shall be borne by the state if it is shown that the
applicant is indigent and not able to pay. These costs shall not be
borne by the county where the motion is filed and granted. If the
applicant is not indigent, and is able to pay, the court may order
the applicant to bear the costs. However, the cost of any
additional testing to be conducted by the district attorney or
Attorney General shall not be borne by the convicted person.
(2) In order to pay the state's share of any testing costs, the
laboratory designated in subdivision (g) shall present its bill for
services to the superior court for approval and payment. It is the
intent of the Legislature to appropriate funds for this purpose in
the 2000-01 Budget Act.
(j)
(k) An order granting or denying a motion for DNA
testing under this section shall not be appealable, and shall be
subject to review only through petition for writ of mandate or
prohibition filed by the person seeking DNA testing, the district
attorney, or the Attorney General. The petition shall be filed within
20 days after the court's order granting or denying the motion for
DNA testing. In a noncapital case, the petition for writ of mandate
or prohibition shall be filed in the court of appeal. In a capital
case, the petition shall be filed in the California Supreme Court.
The court of appeal or California Supreme Court shall expedite its
review of a petition for writ of mandate or prohibition filed under
this subdivision.
(k)
(l) DNA testing ordered by the court pursuant to this
section shall be done as soon as practicable. However, if the court
finds that a miscarriage of justice will otherwise occur and that it
is necessary in the interests of justice to give priority to the DNA
testing, a DNA laboratory shall be required to give priority to the
DNA testing ordered pursuant to this section over the laboratory's
other pending casework.
( l )
DNA
(m) DNA profile information from
biological samples taken from a convicted person pursuant to a motion
for postconviction DNA testing is exempt from any law requiring
disclosure of information to the public.
(m)
(n) Notwithstanding any other provision of law, the
right to file a motion for postconviction DNA testing provided by
this section is absolute and shall not be waived. This prohibition
applies to, but is not limited to, a waiver that is given as part of
an agreement resulting in a plea of guilty or nolo contendre.
(n)
(o) The provisions of this section are severable. If
any provision of this section or its application is held invalid,
that invalidity shall not affect other provisions or applications
that can be given effect without the invalid provision or
application.
SEC. 2. Section 1405.1 is added to the
Penal Code , to read:
1405.1. (a) If the court grants a motion for DNA testing pursuant
to Section 1405, testing is performed, and a DNA profile is obtained
from the results of DNA testing of biological material that excludes
the convicted person, the court may, on its own motion or by motion
of the defendant, order a database search of the Combined DNA Index
System (CODIS) to compare the profile obtained from the results of
DNA testing of biological material to the profiles contained within
the CODIS databank. DNA profiles shall meet current national DNA
database index system eligibility standards and conform to current
Federal Bureau of Investigation quality assurance standards in order
to be eligible for search against the state index system.
(b) For the purposes of this section, profiles contained within
the CODIS databank includes those profiles contained with the
Convicted Offender Index, the Forensic Index, the Arrestee Index, the
Missing or Unidentified Persons Index, and the Missing Persons
Reference Index.
SEC. 3. Section 1417.9 of the Penal Code
is amended to read:
1417.9. (a) Notwithstanding any other provision of law and
subject to subdivision (b), the appropriate governmental entity shall
retain all biological material that is secured in connection with a
criminal case for the period of time that any person remains
incarcerated , on probation, or on parole in connection
with that case. The governmental entity shall have the discretion to
determine how the evidence is retained pursuant to this section,
provided that the evidence is retained in a condition suitable for
deoxyribonucleic acid (DNA) testing.
(b) A governmental entity may dispose of biological material
before the expiration of the period of time described in subdivision
(a) if all of the conditions set forth below are met:
(1) The governmental entity notifies all of the following persons
of the provisions of this section and of the intention of the
governmental entity to dispose of the material: any person, who as a
result of a felony conviction in the case is currently serving a term
of imprisonment and who remains incarcerated , on probation, or
on parole in connection with the case, any counsel of record,
the public defender in the county of conviction, the district
attorney in the county of conviction, and the Attorney General.
(2) The notifying entity does not receive, within 90 days
one year of sending the notification, any of
the following:
(A) A motion filed pursuant to Section 1405. However, upon filing
of that motion, the governmental entity shall retain the material
only until the time that the court's denial of the motion is final.
(B) A request under penalty of perjury that the material not be
destroyed or disposed of because the declarant will file
within 180 days a motion for DNA testing pursuant to
Section 1405 that is followed within 180 days by a motion
for DNA testing pursuant to Section 1405 within one
year , unless a request for an extension is requested by the
convicted person and agreed to by the governmental entity in
possession of the evidence.
(C) A declaration of innocence under penalty of perjury that has
been filed with the court within 180 days one
year of the judgment of conviction or July 1, 2001, whichever
is later. However, the court shall permit the destruction of the
evidence upon a showing that the declaration is false or there is no
issue of identity that would be affected by additional testing. The
convicted person may be cross-examined on the declaration at any
hearing conducted under this section or on an application by or on
behalf of the convicted person filed pursuant to Section 1405.
(3) No other provision of law requires that biological evidence be
preserved or retained.
(c) Notwithstanding any other provision of law, the right to
receive notice pursuant to this section is absolute and shall not be
waived. This prohibition applies to, but is not limited to, a waiver
that is given as part of an agreement resulting in a plea of guilty
or nolo contendre.
(d) If evidence has been destroyed in violation of this section or
otherwise, and if the appropriate governmental entity receives a
request for evidence under Section 1405, the appropriate governmental
entity shall submit a statement that a representative from the
agency personally searched for the requested evidence, without
relying upon the agency's internal index or evidence location
database, and determined that the evidence has been destroyed. The
statement shall be signed under penalty of perjury by the agency's
representative who conducted the search. If the court finds that
biological evidence was destroyed in violation of the provisions of
this section, it shall consider appropriate remedies.
SEC. 4. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local agency
or school district because, in that regard, this act creates a new
crime or infraction, eliminates a crime or infraction, or changes the
penalty for a crime or infraction, within the meaning of Section
17556 of the Government Code, or changes the definition of a crime
within the meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.